Walton v Blacktown City Council [2011] NSWLEC 1261 | Case summary

The conditions in dispute 8The remaining conditions in dispute can be grouped into the following main areas:

whether the requirement for a resident caretaker is appropriate? (conditions 1.1.1, 1.1.2 and 4.5.2),
whether the requirement for a Plan of Management is appropriate? (conditions 1.1.3, 1.2.1.1, 1.2.1.2, 1.2.1.3, 4.5.3 and 4.5.6),
whether the requirements for emergency procedures are appropriate? (conditions 1.2.2.1 and 1.2.2.2),
whether the light spill and other amenity requirements are appropriate? (conditions 4.2.1, 4.2.2, 4.2.5, 4.2.6, 4.4.1),
whether an additional domestic waste service should be provided? (condition 1.2.3.1), and
whether disabled persons should be excluded because the group home has not been appropriately modified? (condition 4.5.7). The resident caretaker - submissions and evidence 9Mr Adamson submits that State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP) specifically encourages group homes and that the imposition of unnecessary conditions is inconsistent with the aim of the SEPP. He submits that the majority of the conditions imposed by the council, including the provision of a resident caretaker, should be deleted for two reasons. Firstly, the provisions of s 46(1)(b) of the SEPP state: 46 Determination of development applications (1) A consent authority must not: . (b) impose a condition on any consent granted for a group home only for the reason that the development is for the purpose of a group home. 10Secondly, the provisions of s 79C(1)(b) that state: 79C Evaluation (1) Matters for consideration-general In determining a development application , a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application : (a) (b) the likely impacts of that development , including environmental impacts on both the natural and built environments , and social and economic impacts in the locality, 11Mr Adamson submits that a reference to "likely impacts of the development" in s 79C(1)(b) cannot relate to speculative assumptions on the operation of the group home. He advocates that the operation of a group home is similar to the normal domestic operation of a dwelling house and that the conditions imposed by the council on the approval of the group home would not be imposed on the approval of a dwelling house. In the absence of any evidence to suggest that a group home would operate differently from a dwelling houses then the conditions should be deleted. Mr Adamson further submits that the SEPP does not mandate that a resident caretaker. If a caretaker was required, Mr Adamson submits that the role could be undertaken by the applicants who reside nearby. 12Mr Apps include the relevant definitions in his evidence. Clause 46 of the SEPP states a " group home means a permanent group home or a transitional group home ". The Standard Instrument (Local Environmental Plans) Order 2006 further defines a group home in the following terms: group home (permanent) or permanent group home means a dwelling: (a) that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and (b) that is used to provide permanent household accommodation for people with a disability or people who are socially disadvantaged, but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies. Note. Permanent group homes are a type of group home-see the definition of that term in this Dictionary. group home (transitional) or transitional group home means a dwelling: (a) that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and (b) that is used to provide temporary accommodation for the relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people, but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies. Note. Transitional group homes are a type of group home-see the definition of that term in this Dictionary. 13He acknowledges the need for affordable housing and for short-term crisis accommodation that is met by group homes however he notes that while the definition does not explicitly mandate a caretaker, the definitions of both a permanent group home and a transitional group home make reference to the provision of "supervision or care". The definition does not provide any guidelines as to where or when such supervision or care need be provided, only that there may be cases where such supervision and care is provided. The SEPP is also silent on the question of when or where supervision or care is provided. 14In his opinion, the provision of supervision or care becomes a merit issue and should be based on factors such as the size of the group home, and the types of persons to be accommodated and whether they may have any special needs. Mr Apps acknowledges that a dwelling of five bedrooms would be able to accommodate a large family; potentially up to eight persons. While it would reasonably be expected that those persons would have visitors and service providers, Mr Apps does not accept that the group home can be reasonably compared to a residential dwelling. He states that the group home will have a maximum of 10 residents and those people will be unrelated and could be housed on a transitional basis. Further, the victims may be persons who are disadvantaged, displaced or suffering from other personal issues and may not have a sense of stewardship of the premises. Potential residents may have come from stressful situation, including domestic violence or eviction due to financial problems. Given the wide range of circumstances that may lead to people occupying the group home, Mr Apps maintains that a caretaker is critical to address any disputes between residents and before any disputes impact on the residents or nearby neighbours. 15Mr Apps rejects the submission of Mr Adamson that the role of caretaker could be undertaken by the applicants who reside a short distance from the site, firstly on the basis that it is more appropriate to have a person on-site who could deal with any issues quickly and secondly, any condition may be ineffective if the current applicants sold the premises. The resident caretaker - findings 16On the conditions relating to the provision of a resident caretaker, I agree with conclusions of Mr Apps for a number of reasons. First, and while the aims of the SEPP are to "facilitate" and provide "incentives" for a range of affordable rental accommodation, it does not follow that the aims are a reason themselves for an approval. The acceptability of a development must be based on a consideration of all relevant matters and that this consideration may lead to the refusal of an application or the imposition of conditions of consent to address likely impacts from that development even though the aims might be satisfied. 17Second, I do not accept that s 46(1)(b) of the SEPP places a barrier to the imposition of any conditions on an approval under the SEPP. Section 79C(1) of the Environmental Planning and Assessment Act 1979 places an obligation to take into consideration a range of matters, and in this case relevantly s 79C(1)(b) that states: (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, 18I did not understand that Mr Adamson, for the applicant, or Mr Loether, for the council, to submit that s 46(1)(b) provided a total barrier to the imposition of any conditions on an application for a group home. Their differences related to whether the conditions in dispute could be imposed under s 79C(1)(b). 19Third, I accept that the conditions in dispute can be imposed under s 79C(1)(b). The sub clause requires consideration of "the likely impacts of that development" and not, as submitted by Mr Adamson, definitive evidence of any impacts. The approach of considering "the likely impacts" of a development is clearly appropriate, particularly when many development applications relate to a development that has not commenced operation. I have little trouble in accepting the evidence of Mr Apps who is an experienced and well-qualified town planner and whose role in the council is to consider development applications under s 79C(1). I note that the applicant provided no expert evidence to refute the conclusions of Mr Apps. 20Fourth, I agree with Mr Apps that there is a likelihood of impacts from the development that would not be likely in an area made up of residential development because of the use of a single dwelling to house up to 10 unrelated persons on a potentially short term or temporary basis. Clearly, the operation of the group home will have characteristics that are different to a residential dwelling. In my understanding, the character of the area is predominantly, if not exclusively, residential dwellings and there is an obligation under s 79C(1)(b) to ensure that this residential character is protected and any impacts from other land uses are minimised. I am satisfied that any likely impacts can be minimised through the existence of a resident caretaker. 21Fifth, I do not accept that the requirement for a resident caretaker is unacceptably onerous given the potential to minimise any impacts from the proposed development. The resident caretaker is not an additional person but an existing occupier of the building but with additional responsibilities in the management and operation of the group home. The Plan of Management - submissions and evidence 22Mr Adamson submits that the conditions relating to a Plan of Management are unnecessary because the proposed development will operate in a manner similar to that of a residential dwelling. He also relies on his previous submissions in relation to the resident caretaker in that there has been no evidence provided to identify specific impacts from the proposed development. 23Mr Apps states that a Plan of Management is necessary as it establishes the roles and responsibilities of the operator, caretaker and residents and will:
provide clarity for the roles and responsibilities for the day-to-day operation of the facility,
ensure a level of harmony, safety and amenity for the operator, caretaker, residents and neighbours by establishing certain rules, and
establish a standard of operation that any future operator of this facility would be able to comply with. 24Mr Apps further states that a Plan of Management is a simple and valid mechanism for establishing clear operating guidelines that will benefit the operator, caretaker, residents of the facility and neighbours and a widely used means of achieving these outcomes. The Plan of Management - findings 25On the conditions relating to the provision of a Plan of Management, I also agree with Mr Apps. A Plan of Management is simply a collection of requirements that specify how the group home will be managed to ensure that it operates in a way that minimises impact on the group home itself, and the neighbourhood and the safety of the occupants. 26I have previously addressed some of the submissions made by Mr Adamson in previous paragraphs on the power to impose conditions and have little trouble in concluding that the requirement for a Plan of Management falls squarely within s 79C(1)(b) largely because of the different characteristics of the group home compared to the surrounding residential development and the need to minimise any amenity impacts. Emergency procedures 27I am satisfied that the conditions relating to emergency procedures are necessary given the potential unfamiliarity of the occupants with the dwelling in times of an emergency. Light spill 28I am satisfied that the conditions relating to light spill are appropriate given the different operating characteristics of the group home. Additional domestic waste service 29The objection to condition 1.2.3.1 is based on the submission that the group home does not generate sufficient waste to warrant the additional service. Mr Apps states that as the group home has the potential for up to 10 persons, the potential clearly exists for additional services when compared to a residential dwelling. 30I accept Mr Apps evidence on this condition however if it was established, through monitoring of the waste services over a reasonable period, that the additional waste service was not required, then an application could be made to modify the development consent. Disabled access 31Condition 4.5.7 prohibits disabled persons from using the premises, as the group home has not been modified to cater for disabled persons in accordance with Part D3 of the Building Code of Australia and Australian Standard 1428. 32This condition was not the subject of any evidence however as a general principle I accept the condition should be imposed. In the absence of at least one room satisfying Part D3 of the Building Code of Australia and Australian Standard 1428 then it is reasonable to deny access to the group home for disabled persons because of the potential safety risks of inappropriate accommodation.

Walton v Blacktown City Council

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Judgment (8 paragraphs)

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